REPUBLIC vs. HIGH COURT, KUMASI; EX PARTE ABUBAKARI [1997-1998] 2 GLR 315

CASES REFERRED TO

(1) Ghana Bar Association v Attorney-General, Supreme Court, Accra, 7 February 1995, unreported.

(2) Tobah v Kwekumah [1981] 1 GLR 648, CA.

(3) Republic v High Court, Accra, Ex parte Easiwood Ltd, [1995-96] 1 GLR 689, SC. (4) Mosi v Bagyina [1963] 1 GLR 337, SC.

(5) Republic v High Court, Kumasi, Ex parte Abubakari (No 1) [1998-99] SCGLR 84. (6) R v Northumberland Compensation Appeals Tribunal, Ex parte Shaw [1952] 1 KB 338; [1952] 1 All ER 122; [1952] 1 TLR161, CA.

(7) Eku alias Condua III v. Acquaah [1968] GLR 412, CA.

(8) Fori v Agyei, Supreme Court, Accra, 10 December 1997, unreported.

(9) Republic v Ekumfi Traditional Council; Ex parte Okae [1974] 1 GLR 412.

(10) Republic v Komenda Traditional Council, Ex parte Prah II [1981] GLR 759.

(11) Republic v High Court, Denu; Ex parte Avadali IV [1993-94] 1 GLR 561, SC.

(12) R v City of London Rent Tribunal; Ex parte Honing [1951] 1 All ER 195; [1951] KB 641; [1951] 1 TLR 41.

(13) Amoanimaa v Osei Kwame [1995] 1 GSCJ 334.

(14) Saibu v Mahama [1967] GLR 506, CA.

(15) Amegbe v Tepa (1958) 2 WALR 392.

(16) Ameoda v Pordier and Ameoda v Forzi (Consolidated) [1967] GLR 479, CA.

(17) Olukare v Ikare (1950) 13 WACA 72.

(18) Toku v Adukorang (1958) 3 WALR 535.

(19) Anomabu Stool v Acquah (1957) 3 WALR. 256.

(20) Republic v High Court, Koforidua; Ex parte Bediako II [1997-98] 1 GLR 488, SC; [1998—99] SCGLR 91.

APPLICATION for an order of certiorari to quash the decision of the High Court, Kumasi declaring the interested party (the plaintiff in the High Court action) as Moshiehene of Kumasi on the ground that the matter before the High Court was a cause or matter affecting chieftaincy and that the High Court was not competent to entertain and determine same. The facts are sufficiently set out in the judgment of Charles Hayfron-Benjamin JSC.

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James Ahenkorah for the applicant.

Peter Adjetey (with him Somua-Asamoah) for the interested party.

Abban CJ. I have had the advantage of reading before hand the judgment about to be read by my learned brother Charles Hayfron-Benjamin JSC and I agree with his analysis of the facts, his exposition of the law relating thereto as well as the conclusions he reached. But for the sake of emphasis and as a sort of footnote, I will like to make a few remarks or observations.

The defendant-applicant (hereinafter referred to as the defendant) has sought an order of certiorari to quash the decision of the High Court, Kumasi, constituted by Piesare J, given on 31 July 1996 in suit No CS/241/95 entitled Chief Alhaji Ibrahim Abdurahman, Head of Moshie Community, Kumasi v Alhaji Amadu Abubakari. The defendant further asked for an order of prohibition. I think in matters like this, it is more convenient to seek both remedies in the same proceedings such as the present, when a decision in excess of jurisdiction has already been made and other steps are yet to be taken in consequence of the said decision. So it was proper that the second remedy of prohibition was also sought purposely to prohibit the enforcement of the judgment.

The defendant was sued by the plaintiff-respondent (hereinafter called the plaintiff) for a declaration that the plaintiff was the substantive head of Moshie community in Kumasi and that the defendant should be restrained from putting himself forward as head of the Moshie community in Kumasi or purporting to act as such. Each of the two parties claimed to have been properly nominated, appointed or selected to succeed the late Moshiehene of Kumasi, one Alhaji Abdulrahman Adam, who died on 12 December 1994. Incidentally, the late Moshiehene, Alhaji Abdul rahman, was the father of the plaintiff and the plaintiff contended that after the death of his said father the council of elders within the Moshie community in Kumasi nominated him and presented him to Mamprusihene of Kumasi to be installed as Moshiehene of Kumasi. The defendant, on the other hand, claimed that some subcommunity heads within the Moshie community in Kumasi nominated and presented him to the Moshie imam who properly installed him as the Moshiehene and that his installation as

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Moshiehene of the Moshie community in Kumasi had been recognised by Otumfuo the Asantehene.

In the High Court, the parties called witnesses and tendered documents to establish their respective claims. The learned High Court judge earlier on in his judgment delivered himself as follows: “The facts which are not in dispute show that the immediate past head of the Moshie community in Kumasi (hereinafter referred to as the Moshiehene of Kumasi) was Alhaji Abdulrahman Adam, the late father of the plaintiff. Alhaji Abdulrahman Adam died on 12 December 1994 after reigning for a period of 23 years. It is the succession to the late Alhaji Abdulrahman Adam which has given rise to the rival claims in this suit.”

The rival claims were initially made in two different letters. The first letter, exhibit E, captioned: “Nomination of New Moshie Chief” was signed by fifteen sub-chiefs of the Moshie community in Kumasi (a faction belonging to the defendant) and addressed to the Mamprusi chief of Kumasi. Then the second letter from the plaintiff’s faction, exhibit 12B, captioned: “Nomination of Moshie Chief” dated 24 December 1994 was also addressed to the Mamprusi chief of Kumasi. It is interesting to quote a few extracts from the two letters, exhibit E and 12B. Portions of exhibit E read as follows: “The first late chief who was succeeded by the late Alhaji Abdulrahaman hailed from the same (Alhaji Abdulrahaman’s) family and that the entire community are appealing to that family members to co-operate and join in transferring the ‘skin’ to another house and serve the new chief whole heartedly as the late chief’s family members may in future be considered for enskinment. The elders and the community (including the sub-chiefs) are aware of the enormous assistance the new elected chief has rendered to the late chief Alhaji Abduirahaman, to bring the late chief’s administration to a more successful end. It is upon this ground, strength and basis that we have chosen the said Alhaji Amadu Abubakari to occupy the skin to promote the progress of the Moshie community.”

Then exhibit 12B continued:

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“Alhaji Ibrahim Addulrahaman is the first born of the late Chief Alhaji Abdulrahaman Adam. Alhaji Ibrahim has been with the late chief since his childhood and is very well-vested in the customs and rites of the Moshie tradition as pertains in chieftaincy . . . We therefore nominated him as chief and head of the Moshie community and we wish to call upon you to pass him through the necessary customary procedures required and have him enskinned as chief of Moshie community.”

The High court was called upon to make a declaration as to which of the two contestants had been properly installed Moshiehene of Kumasi. The defendant claimed he had been validly nominated and properly installed Moshiehene of Kumasi. In my view, the High Court in deciding that issue was dealing with a “cause or matter affecting chieftaincy.” In such cases, it is not the form that matters but the substance which must be examined. In the High Court the letters tendered by the parties and accepted by the High Court did not indicate that the parties were fighting over a mere headship of a community. Each party and his faction contended in their respective evidence that after the nomination by elders or by the sub-community heads, as the case may be, he was enskinned; that is, enstooled as Moshiehene. The letter tendered by the plaintiff ‘s faction and quoted above even went further to state that the plaintiff was: “well-vested in the customs and rites of Moshie tradition as pertains to chieftaincy. We are therefore very convinced that Alhaji Abdulrahamn will make a good chief to lead the Moshie community in Kumasi and in Ashanti Region as a whole . . . we have therefore nominated him as chief and head of Moshie Community and have him enskinned as chief of the Moshie Community.”

As I have stated, the substance of what each party put forward clearly indicated that they were not fighting to be a headman o workers, carpenters, plantain sellers or cloth sellers. Surely, the appointment of an ordinary head of carpenters or head of a fishing community, would not involve enskinment and for that matter enstoolment. Not only that, the nomination and appointment and enskinment of a Moshiehene in Kumasi by the custom of the Moshies needed the recognition of the Mamprusihene of Kumasi who for all intents and purposes was the representative of the [p.324] of [1997-1998] 2 GLR 315

Nayiri whose principal town is at Gambaga in the Northern Region. Furthermore, the enskinment also required the recognition of Otumfuo.

The legislature, by the Courts Act, 1993 (Act 459), has clearly ousted the jurisdiction of the High Court in chieftaincy matters Section 57 of Act 459 provides that:

“57. Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

The phrase “cause or matter affecting chieftaincy” has been defined in section 117(1)(a) of Act 459 to include issues relating to the nomination, election, selection, installation and for that matter enskinment of a person as a chief or ohene. The High Court was not acting within its jurisdiction when it decided to adjudicate on the matter. In the case of Ghana Bar Association v Attorney-General, Supreme Court, Accra, 7 February 1995, unreported, the Supreme Court considered the ouster clause in section 57 of Act 459 in relation to the jurisdiction of the High Court as provided in the Constitution, 1992 as well as the case law on the subject and came to a unanimous conclusion that the High Court has no jurisdiction to adjudicate on chieftaincy matters.

For the above reasons, I will grant the application and order that the writ of certiorari be issued forthwith to quash the judgment of the High Court dated 31 July 1996.

Charles Hayfron-Benjamin JSC. Alhaji Abdulrahaman Adam was the acclaimed Moshiehene of Kumasi for 23 years until his death in 1994. In the ensuing contest for the succession, two candidates emerged, namely Alhaji Ibrahim Abdulrahaman who was elected by a group calling themselves, the “council of elders”, and Alhaji Amadu Abubakar was also elected by a group calling themselves, the “sub-committee of heads.” As it turned out, the succession could not be readily resolved. The matter was therefore referred to the Asantehene who appointed an arbitration panel of seven chiefs to resolve the contest in an amicable manner. Alhaji Ibrahim Abdulrahaman, obviously not satisfied with the findings of the panel of arbitrators, sued his rival contestant, Alhaji Adamu Abubakar, in the High Court, Kumasi claiming:

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“(1) A declaration that the plaintiff is the substantive Kumasi Moshie community head.

(2) An order of perpetual injunction to restrain the defendant, whether by himself, his agents, or servants from representing himself as the Kumasi Moshie community head or purporting to act as such.

(3) An order of perpetual injunction to restrain the defendant whether by himself, his agents, servants or whomsoever from interfering in the plaintiff’s performance of his duties as the substantive Kumasi Moshie community head.”

On 31 July 1996, judgment of the High Court, Kumasi was given in favour of the plaintiff, Alhaji Ibrahim Abdulrahaman, fox the reliefs claimed. In addition, and for no apparent cause, the learned judge awarded ¢1 million as nominal damages against the defendant for trespass to the plaintiff’s rights. Such a perverse order cannot stand without comment and by a superior court judge must be roundly condemned. However, in an application for the issuance of a prerogative writ, the court does not reach the merits and I shall direct my attention to the matter in hand.

Before us the applicant, Alhaji Amadu Abubakari, prays for:

“order of certiorari that the judgment of the High Court, Kumasi, dated 31 July 1996 delivered by His Lordship Eric Piesare J in suit No CS 241/95 entitled ‘Chief Alhaji Ibrahim Abdulrahaman, Head of Moshie Community, Kumasi v Alhaji Amadu Abubakari’ be brought up to be quashed; (ii) order of prohibition . . .”

In the applicant’s accompanying statement and affidavit, the single issue arises as stated in his grounds upon which the applicant seeks relief from this court. It states:

“The issue before the High Court, Kumasi in that suit was a cause or matter affecting chieftaincy in the Moshie community in Kumasi and therefore the High Court was not competent to entertain and determine that issue.”

I believe that reference to “in that suit” is to suit No CS 241/96 which concluded in the judgment under attack.

It is now a settled law that the High Court has no jurisdiction in causes and matters affecting chieftaincy. In Ghana Bar Associa-

[p.326] of [1997-1998] 2 GLR 315 tion v Attorney-General, Supreme Court, Accra, 7 February 1995, unreported, this court had the opportunity of considering most of the leading cases on whether the High Court had jurisdiction in causes and matters affecting chieftaincy within the meaning of the Chieftaincy Act, 1970 (Act 370) and the Courts Act, 1993 (Act 459) and unanimously decided that the High Court had no jurisdiction. Abban JSC (as he then was) succinctly expressed the view of this court thus:

“Provisions in these two sections (section 57 of Act 459 and section 15(1) of Act 370) definitely oust the Jurisdiction of the High Court and the Court of Appeal in any action where the cause or matter affects chieftaincy as defined in section 117(1) of the Courts Act, 1993 (Act 459,) and in section 66 of the Chieftaincy Act, 1971 (Act 370).”

(The emphasis is mine.) His lordship went on to emphasise the ouster of the jurisdiction of the High Court in these matters by reference to and reliance on the case of Tobah v Kweikumah [1981] GLR 648 at 653, CA where Edusei JA in his concurring judgment said:

“I have no doubt whatsoever in my mind this appeal should succeed. The determination of chieftaincy disputes is exclusively reserved to traditional tribunals, the judicial committees of traditional councils, of regional houses of chiefs and of the National House of Chiefs. The jurisdiction of the High Court in such matters is ousted except when it is dealing with prerogative writs connected therewith.”

(The emphasis is mine.) In Republic v High Court, Accra; Ex parte Eastwood Ltd [1995-96] 1 GLR 689, SC, in a ruling in which my learned and respected sister and brethren concurred, I considered the development of the constitutional powers conferred on this court to supervise other courts and tribunals within our municipality by means of prerogative writs and orders and concluded at 698: “The jurisdiction of the High Court can therefore only be taken away by specific legislation. If therefore there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as

[p.327] of [1997-1998] 2 GLR 315 goes to the wrong assumption of jurisdiction or the error is so obvious as to make the decision a nullity.”

A decision is of course of nullity if it falls within the principle in Mosi v Bagyina [1963] 1 GLR 337, Sc.

In this application, the applicant bases his argument squarely on the contention that the principal issue in the litigation before the High Court, Kumasi was a cause or matter affecting chieftaincy. In other words, it was a matter which came within the ambit of section 57 of Act 459 and section 15(1) of Act 370 and therefore the High Court had no jurisdiction or that it was in any case wrong for the High Court to assume jurisdiction as that matter was by the Constitution, 1992 and the Act 370 exclusively assigned to the jurisdiction of the traditional chieftaincy tribunals. Earlier in my ruling on the preliminary objection (see Republic v High Court, Kumasi; Ex parte Abubakari (No 1) [1998-99] SCGLR 86 at 96), I said: “However, having regard to the novelty of the issues raised in the substantive application, the nature of the issues presented to the learned High Court judge, the effect of any such judgment as was given by the learned High Court judge on future litigation in the High Court concerning alien chieftaincy matters, and having regard to the fact that the parties are Moshies—aliens in this country—this court decided to hear arguments on the preliminary objection.”

This court, having overruled the preliminary objection, proceeded to hear and consider the merits of this present application,

In this court, the record usually presented in applications for certiorari is the judgment under attack. In certain circumstances it will be useful for the applicant to comply with the requirements as set out in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] KB 338 at 352, CA where it is stated that the record:

“must contain at least the document which initiates the proceedings; the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.”

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In the present application, the applicant relies solely on the judgment of the High Court dated 31 July 1996 as the record from the High Court upon which he relies for the justification for his prayer to this court.

Reading the judgment under attack, I have no hesitation in coming to the conclusion that the issues presented to the learned High Court judge were within the ambit of a cause or matter affecting chieftaincy. It appeared that the parties even though were Moshies—and therefore aliens—they were admittedly, under the suzerainty of the Nayiri, the paramount chief of the Mamprusis, whose seat of authority is at Gambaga within the territorial boundaries of this country. As the learned High Court judge paraphrased in his judgment:

“Now Dr Abubakar (the third plaintiff witness) in his comprehensive evidence on the historical link between the Mamprusis and the Moshies, showed that the Mamprusi-hene of Gambaga (the Nayiri) founded the Moshie kingdom . . . The result is that it has become the Moshie custom and tradition, that the Mamprusihene, both at home and in Kumasi or elsewhere . . is always consulted whenever it becomes necessay to fill the vacant place of Moshiehene.”

(The emphasis is mine.) Further on, the learned High Court judge accepted that:

“the installation of Moshiehene of Kumasi is the prerogative of the Mamprusihene of Kumasi and therefore without the Mamprusihene of Kumasi any installation of a Moshiehene of Kumasi is null and void.”

(The emphasis is mine.) It seems to me, from the tenor of the judgment, that the learned High Court judge was himself under the impression that he had been called upon to pronounce on which of the rival candidates had been properly nominated and installed Moshiehene, an expression applied by the learned judge himself at the commencement of his judgment for he said: “Accordingly, I accept the plaintiff’s installation by the Mamprusihene as the substantive Moshiehene of Kumasi as the valid installation.” In so doing, it is my respectful opinion that the learned High Court judge assumed the jurisdiction and duties of a traditional council which he did not possess.

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Counsel for the interested party, Mr Peter Adjetey, submitted that the learned High Court judge had assumed no such jurisdiction. Counsel submitted that the matter did not amount to a cause or matter affecting chieftaincy. In counsel’s submission, what was at stake was the headship of the Moshie Community in Kumasi and no more. In his view, the case of Eku alias Condua III v Acquaah [1968] GLR 412, CA was virtually on all fours with the case at bar and his reliance was particularly on holding (5) of the headnote, which reads:

“Even if it was conceded that the state council had since 1944 a residuary jurisdiction to adjudicate in stool disputes and other matters of a constitutional nature nevertheless it had no jurisdiction to entertain the suit in this case which raised only a pure question of fact. The headship of the Aboasi fishing community was an ordinary office without constitutional status, functions or privileges. And this being an ordinary personal suit for a declaration of right, it should be remitted to the High Court for rehearing.”

Now, as the learned editor rightly stated in the headnote, holding (5) in the Eku case (supra), was obiter. The real issue in controversy being whether the state council was invested with residual jurisdiction to adjudicate on constitutional matters. Apaloo JA (as he then was) expressed his exasperation with the judgment when he said at 454 of the report:

“The curious result of this case, is, that my brother Lasey and I accept the respondent’s contention that the state council of Shama has an inherent jurisdiction to determine post 1944, a dispute relating to the appointment or dismissal of a headman. Azu Crabbe JA and Lassey hold that the headship of Aboasi is not a political office. Azu Crabbe JA and I are in agreement that a native court has no jurisdiction to entertain this dispute. Lassey JA thinks that it has, but concurs that the appeal be allowed and the matter remitted to the High Court for rehearing.”

Let me concede that the fact that a holding is obiter does not necessarily mean that it is bereft of any value or authority. When a judge feels strongly about any matter which is not directly an issue in any given case, he is entitled to express himself on such issue. In the instant application, that holding contains some serious

[p.330] of [1997-1998] 2 GLR 315 exceptions which distinguish it from this case. Thus, for the Eku case (supra) to apply in terms of that holding, the matter, (a) must be an ordinary office without constitutional functions or privileges; (b) must be in respect of an ordinary personal suit for a declaration of right; and (c) must raise only questions of fact.

It was not submitted to us, but it has been bruited about that there are other persons who claim to the title of chiefs but who are not really chiefs in the sense that their offices do not qualify them to be regarded as such within the constitutional and statutory definition of a chief. Thus the learned judge in the instant case said in his judgment:

“I agree with Nana Boakye Yaw that the status of a chief as ‘Nana’ is being misapplied in Ashanti. For instance the leader of a Tomato Sellers Association is called ‘Nana.’ And surely by this declension we would have for instance Nana Bodiehemaa (queen of plantain sellers) . . . and so on. These are not chiefs, they should not be so honoured.”

The above statement is generally correct. The difference, however, between the matter presently under consideration and the preceding statement cited from the judgment forming the record presented to this court, is that these market associations and other such groupings comprise amorphous groups of citizens and others not based on ethnic or tribal affinities. Such a group would fall under the principle enunciated in Eku alias Condua III v Acquaah case (supra), and could not by any means assert any constitutional relationship with any traditional authority. In the instant application the learned High Court judge himself admits it was a “Moshieman affair.” The learned High Court judge found that the installation of a Moshiehene in Kumasi without the approval of the Mamprusihene of Kumasi is null and void. In the circumstances, the fact that the contestants are aliens becomes an irrelevant consideration as by their own declarations their chieftaincy matters must be subject to the control and approval of the Mamprusihene. There is, in my respectful opinion, a constitutional relationship between the Moshies resident in Ghana and the Mamprusis with respect to the chief-making process.

Nor was this all. The interested party by the endorsement of his writ of summons in the High Court, Kumasi claimed in his relief that he had been: “recognised by Otumfuo the Asantehene.” In my respectful opinion, such a claim presupposes a constitutional rela-

[p.331] of [1997-1998] 2 GLR 315 tionship between the interested party and Otumfuo the Asantehene and automatically raised a cause or matter affecting chieftaincy. The learned High Court judge granted the interested party that relief. He definitely did not have jurisdiction to inquire into the constitutional relations between the Moshiehene of Kumasi and the Asantehene.

It is generally thought that matters affecting chieftaincy are only concerned with the enstoolment or enskinment processes. Under both Act 459, s 117(1)(e) and Act 370, s 66(e), “the constitutional relations under customary law between chiefs” is a cause or matter affecting chieftaincy. The matter thus raised, concerned both the Asantehene and the Nayiri, for a validly installed Moshiehene must be recognised by the Asantehene or his installation is null and void if not approved by the Nayiri or his representative in Kumasi.

In the present application, exhibits E and 12B have similar captions Exhibit E is captioned “Nomination of New Moshie Chief.” In the body of the exhibit, Moshies are invited to: “join hands in transferring the ‘skin’ to another house and serve the new chief whole-heartedly as the late chief’s family members may in future be considered for enskinment.” (The emphasis is mine.) Then also in exhibit 12B it is also captioned “Nomination of Moshie Chief” and in the body of the exhibit the writer, the chairman of the council of elders, stated: “. . . we wish to call upon you to pass him through all the necessary customary procedures required and have him enskinned as chief of the Moshie community.” (The emphasis is mine.)

Needless to repeat these two exhibits were addressed to the Mamprusi chief of Kumasi. Besides, at the conclusion of his judgment, the learned High Court judge virtually admitted that: “The case before me is purely a Moshieman affair, and it should be so treated.” Clearly, if it is a purely Moshieman affair (that is a Moshie tribal affair) then it may be asked what is the proper forum for dealing with such a chieftaincy matter: For the rivals expected one of them to be “enskinned” Moshiehene. Was it the High Court or any other tribunal other than a chieftaincy tribunal which would have the jurisdiction to resolve the issue? The answer clearly is that it is only a chieftaincy tribunal and certainly not the High Court, which could adjudicate on that matter. The jurisdiction of the High Court is clearly ousted by statute.

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In my respectfully opinion, the endorsement on the writ in suit No CS 241/95 that the plaintiff was the “substantive Kumasi Moshie community head” was a subterfuge whereby the plaintiff sought to invest the High Court with jurisdiction in that suit. This court has warned several times that it will be astute to thwart any attempts by litigants in chieftaincy matters to prefer their suits in the High Court when the jurisdiction clearly does not exist. Nor can the High Court judges be insensitive to or feign ignorance of the statutory bars which clearly deny them jurisdiction.

As I have said, in prerogative applications, this court does not reach the merits of the case. This court cannot express itself on the merits. Any references to the contents of the record presented to us is purely for determining the propriety of this application and for no other purpose. The control which this court exercises over all other courts was stated by me in Ex parte Eastwood Ltd (supra) at 330 thus: “The nature of such control was stated by Morris LJ in the Eng1ish case of Anisminic v Foreign Compensation Commission [1969]2 AC 147 at 12, HL:

‘The control which is exercised by the [High Court] over inferior tribunals (a categorising but not a derogatory description) is of a supervisory but not of an appellate nature. It enables the [High Court] to correct errors of law if they are revealed on the face of the record . . .

In all cases similar to the present one it becomes necessary, therefore, to ascertain what was the question submitted for the determination of a tribunal. What were its terms of reference? What was its remit? What were the questions left to it or sent to it for its decision? What were the limits of its duties and powers? Were they any conditions precedent, which had to be satisfied before its functions began?”

In this application both parties agree that they owe allegiance to the paramount Chief of Mamprusi (the Nayiri) whose principal town is at Gambaga in the Northern Region and that they are subject to Mamprusi customary law. The matter which was presented to the learned High Court judge was clearly a chieftaincy matter as it involved the nomination and the appointment of a Moshiehene in Kumasi whose office, without the approval of the Mamprusihene of Kumasi as a delegate of the Nayiri, will be null and void.

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Section 63 of Act 370 covers the allegiance owed by a chief resident in one region to his overlord resident in another region. It seems to me that in such a case any matters relating to chieftaincy may be referred to the overlord’s judicial committee of the traditional council. Section 15 of Act 370 provides that a traditional council: “shall have an exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area.” In the instant application, I do not think it is necessary for me to determine the choice of traditional council within which the matter may be heard.

One matter remains to be resolved briefly, and it is the contention of the definition of a chief and in particular the expression “appropriate lineage.” I have already expressed myself on this expression in Fori v Agyei, Supreme Court, Accra, 10 December 1997, unreported in which I said that that expression is “a term of art and connotes any customary method by which a person may prove his eligibility to a stool or skin.” In my view, that expression is internal to an inquiry before a chieftaincy tribunal of the qualifications of a candidate. It is not a prerequisite for instituting a cause of matter affecting chieftaincy.

In view of the fact that in this case the cause or matter affecting chieftaincy is fully within the competence of a chieftaincy committee of a traditional council in our municipality, I shall content myself by stating that it will be contrary to public policy for a court to assume jurisdiction in a cause or matter affecting chieftaincy involving aliens where such court otherwise has no jurisdiction to adjudicate on similar matters which arise within our municipality.

I will therefore grant this application and order that the judgment of Pieasare J in the case of Chief Alhaji Ibrahim Abdulrahman v Alhaji Amadu Abubakari, High Court, Kumasi, 31 July 1997, unreported be brought up to this court that the same may be quashed, and it is accordingly, quashed.

Ampiah JSC. I have had the privilege and opportunity of reading before hand the opinions of some of my brothers and sister in this case. The position has not been made any easier by the use of certain words, terms, phrases and descriptions which have confused the main issue in the case. A clarification of some of these terms, words etc would, in my opinion, help in resolving the core issue in the matter.

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In this application, the applicant seeks an order of certiorari to have brought to this court for the purpose of having it quashed a judgment of the High Court, Kumasi, dated 31 July 1996 in suit No CS 241/95. He also asks for an order of prohibition directed to the same court “prohibiting it from enforcing the said judgment or in any way whatsoever proceeding further in the said suit and for such further or other orders as to this court will deem fit.”

On 12 December 1994, the head of the Moshie community in Kumasi, one Alhaji Abdulrahman Adam died. It became necessary to appoint his successor. It is this appointment which has provoked the litigation culminating in this application. The Moshie community in Kumasi on this issue broke into two factions. One faction, a group of elders described as the “council of elders”, headed by one Alhaji Abubakar Sam, nominated one Alhaji Ibrahim Abdulrabman for the post of Moshiehene of Kumasi and presented him to the Mamprusihene of Kumasi according to their custom and tradition for installation as the Moshiehene. The other faction, a group of elders described as the “sub-community heads”, headed by the Yateyatehene Osman Ouadrago of Ayigya Moshie Zongo, nominated Alhaji Amadt Abubakari for the post of Moshiehene of Kumasi and presented him to the Moshie imam according to their custom and tradition for installation as the Moshiehene of Kumasi.

On 12 July 1995, the rival claims were laid before Otumfuo the Asantehene for settlement or arbitration. Otumfuo, the evidence shows, appointed a panel of his elders to sit on the matter and decide on the validity of these appointments. The panel decided in favour of the second group, ie the appointment of Alhaji Amadu Abubakari. The first group not satisfied with this decision resorted to court action at the High Court, Kumasi claiming:

“(1) A declaration that the plaintiff is the substantive Kumasi Moshie community head.

(2) An order of perpetual injunction to restrain the defendant whether by himself, his agents, or servants, from representing himself as the Kumasi Moshie Community head or purporting to act as such.

(3) An order of perpetual injunction to restrain the defendant whether by himself, his agents, servants or whomsoever from interfering in the plaintiffs performance of

[p.335] of [1997-1998] 2 GLR 315 his duties as the substantive Kumasi Moshie community head.”

The second group refuted the claim and counterclaimed for:

“(1) A declaration that the defendant is the head of the Moshie community in Kumasi who has been duly selected and installed and recognised by Otumfuo the Asantehene.

(2) Perpetual injunction restraining the plaintiff from styling, posing, representing himself as the head of the Moshie community in Kumasi.”

On 31 July 1996, the High Court gave judgment in favour of the first group (the plaintiff in the action) and declared the appointment of Alhaji Ibrahim Abduirabman valid. The application before the court now is for an order to have declared null and void the decision of the High Court on the ground that the decision had been given without jurisdiction. The applicant (defendant in the action before the court) contends that the issue before the court was a cause or matter affecting chieftaincy and that the court lacked jurisdiction to entertain it.

It must be noted that the issue of jurisdiction had not been raised by either party on their claims; nor was it raised on the pleadings and evidence. It would appear from their conduct that the matter was not a cause or matter affecting chieftaincy and neither had put that up. The judge had considered that issue and had come to the conclusion that it was not a chieftaincy action. It seems belated that the applicant should raise this issue. But it is trite learning that an issue of jurisdiction can be raised at any stage of the proceedings and even on appeal. If a court lacks jurisdiction in an action, its proceedings, however innocent they may be, can be challenged at a higher forum since such proceedings are null and void.

The core issue of this controversy before the court is whether or not the matter is a “cause or matter affecting chieftaincy.” And this can be determined only on the available evidence before the court; and, in an application for an order of certiorari, only on the records presented to the court. In this respect, the court does not go into the merits or demerits of the judgment attacked but on what has been presented.

[p.336] of [1997-1998] 2 GLR 315

“A cause or matter affecting chieftaincy” has been defined under section 66 of the Chieftaincy Act, 1971 (Act 370). It states:

“cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following— (a) the nomination, election, appointment or installation of any person as a Chief or the claim of any, person to be nominated, elected, appointed or installed as a Chief;

(b) the destoolment or abdication of any Chief;

(c) the right of any person to take part in the nomination, election, appointment or installation of any person as Chief or in the destoolment of any Chief;

(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;

(e) the constitutional relations under customary law between Chiefs,”

It is necessary however to determine in the first place, whether or not a person is a “chief’ before any matter affecting his status or property could be said to be a “cause or matter affecting chieftaincy.” In this application, it has been contended that the “headship” of the Moshie community in Kumasi is a chiefly office. This claim is based on the use of the name “ohene” or “hene” to describe the Moshie head.

It is in evidence that the Moshies are not Ashantis and therefore not Akans from whose language the word “ohene” or “hen” emanates. The word “ohene” or “hene” has been translated to mean a “chief” and this has given rise to the erroneous assumption that every person referred to as an “ohene” or “hene” is a “chief” in the real sense of the word. In Eku alias Condua III v Acquaah [1968] GLR 418, CA, the court had occasion to decide on the issue by a majority of three to two that the head of the Aboasi fishing community was not a chief or a holder of a constitutional office though the State Council of Ghana by law had jurisdiction to entertain that action.

In Ghana, at least the word “chief” or “ohene” has been attached to various heads of communities or associations. For example, the head of the fishing community is often referred to as the chief fisherman; the head of farmers is referred to as the chief farmer the head of the tomatoes sellers association is referred to as the tomatoeshene, etc.” In English the word “chief” means: “leader or

[p.337] of [1997-1998] 2 GLR 315 ruler of a tribe or clan or a person with the higher rank in an organisation etc”: see the Oxford Advanced Learner’s Dictionary (2nd Impression, 1989). But it cannot be disputed that not all heads, or people called “ohene” or “hene” are chiefs properly so called. To qualify as a “chief,” one must bring oneself under Act 370, s 48(1) which states:

“48. (1) A chief is an individual who has, in accordance with customary law, been nominated and installed as a chief or as the case may be appointed and installed as such and whose name for the time being appears as a chief on the National Register of Chiefs . . .”

The requirement of coming from a particular family and lineage is however missing in this definition. Article 277 of the Constitution, 1992, however, provides that:

“Chief’ means a person who hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled enskinned or installed as a chief or queenmother in accordance with the relevant customary law and usage.”

(The emphasis is mine.) To this extent, the constitutional provision which slightly differs from the provision under the Act must prevail.

Yet, there are some persons who do not come from any particular family or lineage but who are also recognised as chiefs. Such persons are appointed, elected or selected by head chiefs or by the people in accordance with customary authority vested in them under customary law and usages. The only criterion for the appointment, election or selection is that they should belong to a particular clan (say Oyoko, Anona, Aboradze, etc) no matter where they come from. Others are appointed on the strength of their contribution to the development of a particular state or for their valour in a war. Some of these appointments may be heritable, that is, the status descends down their family or lineage thus creating a family or lineage for subsequent succession to that stool or skin. There are non-heritable ones which cease on the death or abdication or the removal of that person holding that office. Thus, a person may qualify to be a chief although not strictly going by the definition in either the Constitution, 1992 or the Chieftaincy Act. A lot of the confusion arising out of the instant case emanates [p.338] of [1997-1998] 2 GLR 315 from the use of various epithets to describe the “Moshiehene” or the head of the Moshie Community of Kumasi and the indiscriminate use of the words “appointment”, “nomination”, “enstoolment”, “enskinment” and “installation.” It is therefore advisable in dealing with the issue who is or is not a chief not to cling strictly to definitions contained in the statute books.

The situation has not been made clearer by the provision in section 49 of Act 370 which categorises the kinds of chiefs. It provides:

“49. The following are the categories of chiefs — (a) The Asantehene and Paramount Chiefs;

(b) Divisional Chiefs;

(c) Sub-divisional chiefs;

(d) Adikrofo; and (e) such other Chiefs not falling within any of the preceding categories as are recognised by the Regional House of Chiefs.”

(The emphasis is mine.) Thus, in the case of the Republic v Ekumfi Traditional Council; Ex parte Okae [1974] 1 GLR 412, Wiredu J (as he then was) was prompted to observe:

“It is not easy to determine on the face of section 49 (e) of Act 370 in isolation those chiefs who fall within the language of that paragraph; for the preceding paragraphs appear to cover almost all the obvious known chiefs, and save the adikrofo all the other categories of chiefs are occupants of some kind of stool . . .”

Also in Republic v Komenda Traditional Council; Ex parte Prah Il [1981] GLR 759 at 764, Osei-Hwere J (as he then was) commented on section 49(e) of Act 370 thus:

“What section 49(e) of Act 370 postulates is that the categories of chiefs enumerated before, are not exhaustive but that there may be other types of chiefs who are recognised by the regional house of chiefs. This is factual but not speculative.”

It would appear that the necessity of having the chiefs recognized by the regional house of chiefs would not make a person a chief or no chief for section 48(1) of Act 370 states:

[p.339] of [1997-1998] 2 GLR 315

“ . . . provided that no person shall be deemed to be a Chief for the purposes of the exercise by him of any function under this Act or under any other enactment, unless he has been recognised as such by the Minister by notice published in the Local Government Bulletin.”

If a person is installed a chief in accordance with the provisions of the Constitution, he may be a chief although his name may not appear in any of the registers; but he cannot perform any function under the Act or any other enactment.

In the case of the Republic v High Court; Ex parte Avadali IV [1993-94] 1 GLR 561 at 592, SC, I had the occasion to consider this issue and, this is I what said:

“What the ‘head’ means can only be ascertained by reference to the community in which that person lives . . . What ‘hlotator’ or head of the Anyigbe clan/family entails can only be understood by reference to the custom and history of the people themselves. Since the parties are not agreed on this, we have to refer to other records and behaviour for the real interpretation.”

In the instant case certain issues have been raised concerning personalities whose position as chiefs has not been disputed, namely the Asantehene, the Mamprusihene of Gambaga (the Nayiri) and the Moro Naba. It has been said that: (i) the nominated person must be presented to the Mamprusihene of Kumasi or the imam; (ii) the nomination must be approved or accepted by the Asantehene. Which is which?; and (iii) the installation must be done in accordance with the custom and tradition of the Moshies—where Are there any such customs and traditions and are they binding on all Moshies or only those at Kumasi or in Ashanti? There is no agreement on this.

The Moshiehene so appointed, on the record, is not only for Kumasi but also for the whole of Ashanti. The Moshies, admittedly, are not Ashantis; they are alien settlers on Ashanti land. Apparently, there are sub-communities of the Moshies each with a sub head. It is said that the installation of a Moshiehene for Kumasi and Ashanti must receive the approval and/or acceptance of the Asantehene. It has been argued: “How can an alien be installed at Kumasi and function at Kumasi, and for that matter in Ashanti when that person is not acceptable to the Asantehene?” Ordinarily,

[p.340] of [1997-1998] 2 GLR 315 when ethnic groups appoint their chiefs (heads) on an alien land, there is not such approval or acceptance by the chiefly head of that community; what is offered is “respect.” If therefore in a case such as the instant one there is need for approval and acceptance, who is required to do the acceptance or the approval, is it the Asantehene or the Mamprusihene of Kumasi who allegedly represents the Mamprusihene of Gambaga (the Nayiri)? What then is the relationship between the Asantehene and the Moshiehene of Kumasi (and Ashanti)?

A cause or matter affecting chieftaincy includes:

“(c) the right of any person to take part in the nomination, election appointment or installation of any person as a chief or in the destoolment of any chief; and (e) the constitutional relations under customary law between chiefs.”

The manner by which the Mamprusihene of Kumasi is appointed is not the subject-matter of this application and there is no evidence to that effect. Since he has a say in the installation of a Moshiehene, it may be necessary to find out the constitutional relationship between the Moshiehene of Kumasi and the Mamprusihene. And, what is the constitutional relationship between the Mamprusihene of Kumasi (representing the Mamprusihene of Gambaga (the Nayiri)), and the Asantehene in so far as the appointment of a Moshiehene of Kumasi is concerned? Has the Asantehene a right to take part in such installation?

All these are constitutional issues. The appropriate or proper forum may well decide there are no constitutional relationships but that must be determined by it. As the evidence stands, in whatever form the claim has been couched, there appears, in my opinion, an issue on chieftaincy to be determined. The High Court therefore should have declined jurisdiction; its proceedings were a nullity, would grant the application to quash them.

Atuguba JSC. The core issue in this application for certiorari to quash the judgment of the High Court, Kumasi, dated the 31 July 1996, is whether the said judgment is the product of jurisdiction exercised in a cause or matter affecting chieftaincy.

The controversy in the suit raged over the headship of the Kumasi Moshie community. The applicant contends that that position is a chiefly one and therefore the High Court has no

[p.341] of [1997-1998] 2 GLR 315 jurisdiction over the suit relating to the same and consequently the determination of the same ought to be quashed by certiorari. Additionally, the applicant prays for an order of prohibition to restrain the High Court, Kumasi from enforcing the said judgment or in anyway whatsoever proceeding further in the said suit and such other orders as to this court would seem fit. Counsel for the respondent, Mr Ala Adjetey, has contended that the said suit was not a cause or matter affecting chieftaincy since the Kumasi Moshie community head is not a chief.

It is obvious that in this application, this court is called upon to determine a jurisdictional fact upon which the validity of the judgment of the High Court, Kumasi, in this case, depends. In such a situation Lord Goddard CJ in R v City of London Rent Tribunal; Ex parte Honing [1951] 1 All ER 195 at 197 offers a guideline, thus:

“In some cases, this court has been able to inquire into the matter by means of documents and other information put before it and has come to a conclusion that the tribunal decided erroneously.”

(The emphasis is mine.) To those documents and information I now turn, bearing in mind that in proceedings of this sort or any proceedings for that matter, as Adade JSC said in Republic v High Court, Denu; Ex parte Avadali IV [1993-94] 1 GLR 561 at 571, SC: “A court is not precluded from seeking help from any published work,” and, if I may needlessly add, judicial precedents. (The emphasis is mine.)

I propose to test the claim that the position of Moshie community head of Kumasi is that of a chief against certain discernible criteria. The parties have pitched battle over the case of Eku alias Condua III v Acquaah 1968] GLR 412, CA. There, the majority (Azu Crabbe and Lassey JJA (as they then were); Apaloo JA (as he then was) dissenting), held that on the facts of that case the Aboasi fishing community headman was not a chief or the holder of a constitutional office. Azu Crabbe JA (as he then was) limited his consideration of the position of headman of a village to what obtains under the Fanti customary system. However, Lassey JA gave it a broader perspective when he stated at 459 that: “The term ‘headman’ is the English translation of our vernacular words ‘Onukpa,’ ‘Amega,’ ‘Odikro’ or ‘Panyin,’

[p.342] of [1997-1998] 2 GLR 315 etc. These are titles to the holders of the traditional office of headmen in our villages in various parts of the country. This type of headman is in fact a small chief in the village and his office is political or constitutional in character. A perusal of the chiefs’ lists published by the erstwhile Native Affairs Department of the then Gold Coast shows that the ‘Odikro,’ ‘Onukpa,’ ‘Amega’ or ‘Panyin’ is given a place in the chiefdom in the particular traditional authority or area. The headman of the particular village . . . is known by the customary or traditional title of ‘Onukpa,’ ‘Amega,’ ‘Odikro’ or ‘Panyin’ and he is the chief of the lowest grade in the hierarchy of chiefs in the particular chiefdom. This type of headman is in most cases either the leader or the founder of the particular village or is appointed from amongst the subjects of the paramount stool to be headman of the village. He is not in my opinion a mere head of a section of a community. His office or status is recognised as part of the traditional structure of the state of which the village of which he is the head is an integral part.”

(The emphasis is mine.) The point stressed by Lassey JA (as he then was) in this passage is that a headman who is a chief, is the type of headman whose position is recognised as a chiefly one in the political structure of a particular native state or chiefdom. Ampiah JSC similarly stressed this point when he said in Republic v The High Court, Denu, Ex parte Avadali IV (supra) at 592 that: “What the ‘head’ means can only be ascertained by reference to the community in which that person lives . . . What ‘Hlotator’ or “head” of the Anyigbe clan/family entails can only be understood by reference to the custom and history of the people themselves. Since the parties are not agreed on this, we have to refer to other records and behaviour for the real interpretation.”

Such an approach is justified because, as Adade JSC put it in Amoanimaa v Kwame [1995] 1GSCJ 334 at 338: “The institution of chieftaincy is itself a traditional institution, and constitutes the social and political foundation of the particular community.” (The emphasis is mine.)

[p.343] of [1997-1998] 2 GLR 315

In this case the record shows that among the Moshies the traditional fountain of chieftaincy is the Nayiri, the overlord of the Mamprusi state who:

“founded, the Moshie kingdom for his grandson Oudrago, who thus became the first Moshie king. The result is that it has become the Moshie custom and tradition, that the Mamprusihene, both at home and in Kumasi, or elsewhere, has always been treated as grandfather of the Moshie people, and that as such, he is always consulted whenever it becomes necessary to fill the vacant place of a Moshiehene.”

This clearly relates to the Moshie people as a whole or generally. There is nothing on the record or otherwise to show that the position of a Moshie community head in Kumasi or elsewhere is customarily accepted as that of a chief. Indeed, the very parties to the suit disclaimed any such status for that post. In his writ at the High Court, Kumasi, as revealed by the material on record, the respondent who was the plaintiff therein, styled himself as “Chief Alhajiibrahim Abdulrahman, Head of Moshie Community, Kumasi . . .” But when it came to the operative and substantive reliefs he claimed from the High Court, Kumasi there was nothing linking them with the status of a chief. It would be observed from the record that the chiefly title attributed to the position of a Kumasi Moshie Community head, is “Moshiehene.” That title is not only of a tongue foreign to the Moshies and Mamprusis but was singularly unasserted in either the plaintiff’s claim or the defendant’s counterclaim; and was on the contrary wholly denuded, by necessary implication, of any chiefly status by the defendant when, according to the interested party’s statement of case dated 9 January 1998, he (the applicant) in his statement of defence and counterclaim at the trial filed on 20 September 1995 pleaded at paragraph (7) that: “the headship of the Moshie community is neither a stool or (sic) skin.” (The emphasis is mine.) The interested party in his said statement of case continues further thus:

“It was indeed common ground between the parties at the trial that the head of the Moshie community in Kumasi is not a chief since he does not occupy a stool or a skin. It is therefore strange, to say the least, and certainly, inconsistent, for the applicant to now execute a volte-face by contending that all along the dispute is one involving chieftaincy.”

[p.344] of [1997-1998] 2 GLR 315

To these assertions and contentions put forward by Mr Ala Adjetey with indefatigable ability on behalf of the interested party, the applicant made no reply even though rule 64(2) of the Supreme Court Rules, 1996 (CI 16) amply provides: “(2) The applicant may, within seven days of the service on him of the respondent’s statement of case, file with the Registrar a reply to the respondent’s statement of case” in proceedings invoking the supervisory jurisdiction of this court. It was when by special dispensation of this court the applicant had the chance to react to the respondent’s reliance on Eku alias Conduah III v Acquaah case (supra), that his counsel, Mr Ahenkorah, with characteristic, but belated ingenuity, sought to fight back on those issues; but even there he confined himself to the exhibits in the case.

In Republic v Ekumfi Traditional Council; Ex parte Okae [1974] 1 GLR 412 at 416, Edward Wiredu J (as he then was) said:

“It is not easy to determine on the face of section 49 (e) of Act 370 in isolation those chiefs who fall within the language of that paragraph; for the preceding paragraphs appear to cover almost all the obvious known chiefs, and save the adikrofo all the other categories of chiefs are occupants of some kind of stool . . . ”

(The emphasis is mine.) Then at 418 he said:

“It is also of common knowledge that persons appointed as family heads of individual ordinary families in the country do not take on any new official names and titles whenever they are appointed as such heads. The only known cases where this is done are by those family heads connected with some stools. The name adopted by the second applicant to signify his position as the ebusuapanyin of the Ebiradze Family of Otuam shows beyond doubt that the head of that family is not an ordinary head of family as is known in this country but one contemplated within the language of section 49(e) as a chief If that was not the case then it was strange for the second applicant to have assumed the new official name Nana Kwame Ano II as the recognised and accredited head of that family . . .”

(The emphasis is mine.) Similarly, in Republic v The High Court Denu, Ex parte Avadali IV (supra) at 575, Abban JSC (as he then was) lucidly stated as fo1lows:

[p.345] of [1997-1998] 2 GLR 315

“It can therefore be seen that all the events which preceded the filing of the writ of summons centred around the disputed enstoolment of the first plaintiff respondent as hlotator with the title of Avadali II, a clear indication that the office of hlotator in Agave political set-up is recognised as a chiefly status . . . Again, there is no doubt, having regard to all those exhibits, that Avadali is also a recognised royal title given to an occupant of a stool after that occupant has been properly enstooled as a chief. Incidentally, the first- plaintiff respondent in the title of the suit styled himself as Avadali II. In the circumstances it is not difficult to conclude that, the first plaintiff-respondent in the writ of summons was seeking a declaration as t a chiefly status . . . ”

(The emphasis is mine.) In Eku alias Conduah III v Acquaah, (supra), the majority held that it is a headman with a stool that could pass for a chief.

It is clear therefore that a chiefly title and a stool (or skin) are familiar hallmarks of a chiefly office. One will however have to bear in mind the caution sounded by Professor C E K Kumado in his article “Chieftaincy and the Law in Modern Ghana” (1990-1992) 18 UGLJ 194 at 212 when, commenting on the definition of “chief” in article 181 of the Constitution, 1979 of Ghana, he said that:

“Thirdly, the definition recognised that ‘enstoolment’ and ‘enskinment,’ which presuppose the existence of stools and skins as the most important insignia of chiefly office, were not the processes by which a person became a chief. For as the Mensah Constitutional Commission noted in paragraph 256 of its Report, the earlier definitions excluded the heads of certain well-defined communities, composed of persons originally not indigenous to these parts but who are now full Ghanaians. But since in many of these cases, the insignia of office does not include a stool or a skin, the earlier definitions denied their chiefly status and one had to go to the statutory list of chiefly titles to discover this. The use of the word “installed” in article 181 was to remedy this omission.”

(The emphasis is mine.) But it is clear from the record in this case that the Moshie community in Kumasi goes by the system of

[p.346] of [1997-1998] 2 GLR 315 enskinment. The evidence on record shows that their idea of chieftaincy is linked up with the Nayiri of Nalerigu (otherwise referred to in the record as the Mamprusihene of Gambaga). This is supported by Rattray in his monumental work, The Tribes of the Ashanti Hinterland, Vol II at p 559 where he states that: “The Na of Yendi calls the Na of Naleregu “Ba” (father); the Na of Wagadugu (Moshie) calls him “Yaba” (grandfather), and is in turn called “Yaya” (grandchild).

What led to this is related at page 546 concerning a Mamprusi chief called Bawa, as follows: “He had a daughter called Yantaure. She refused to marry the man to whom her father wished to give her, and mounting a stallion (wa‘daugo), rode away past Pusiga and across a river until she met a hunter, whom she married and by whom she bore a son who was called Wadaugo (stallion). When Bawa heard of this, he declared that his grandson would one day become Chief of the bush (mone), hence the name Moshie.”

(The emphasis is mine.) This tallies with the account of the founding of the Moshie Kingdom earlier quoted in this ruling. Though at page 557 of his said work, Rattray conveys the impression that the Nayiri’s symbol of office is “a golden stool”, it would seem that the better known symbol of chiefly office in the Mamprusi state is the skin. This can be gleaned from the case of Saibu v Mahama [1967] GLR 506 at 511 where the Court of Appeal, per Ollennu JA (as he then was) stated as follows:

“Upon consideration of the totality of the evidence given for both sides, it is made abundantly clear that the whole evidence proves one and only one custom, namely, that the Walewale lands, by virtue of the facts that they are attached immediately to a sub-skin, the Duranaa skin, are at one and the same time lands of the Wunaaba, ie of the divisional skin of Wungu, and at the same time are lands of the paramount skin, ie the Mamprusi skin of the Nayiri.”

(The emphasis is mine.) Similarly E N A Kotey, in his article “Land and Tree Tenure and Rural Development Forestry in Northern Ghana” (1993-95) UGLJ 102 at 108 states as follows: “In the Northern Region, the tenure systems of the politically more centralised Dagbon, Mamprusi, Nanumba and Gonja recognise that the allodial title to land . . . is vested in

[p.347] of [1997-1998] 2 GLR 315 the various skins. The allodial title to land is in theory vested in the indigenous communities as represented by their paramount skin, like the Ya Na (the Feudal King of the Dagomba, now the paramount chief) or the Nayiri (the Paramount Chief of Mamprusi). Practical management is, however, done by the various sub-skins.”

(The emphasis is mine.) As to the title of a chief in the Mamprusi state system, Rattray, in his said work, at page 551 states as follows:

“The Na: This title, which is apparently a contraction for the longer word ‘Nab’ or ‘Naba’ (pl Nabdema) is used throughout the Northern Territories to designate the Territorial or Secular Rulers as opposed to the old-time spiritual leaders—the Ten’ dama. The word is used in a wide sense, embracing as it does all grades of these secular chiefs from the head of a few mud compounds to the ‘King’ of the Native State. This comprehensive use of the word is a further proof of the decentralization to which reference has already been made.”

(The emphasis is mine.) This is supported by E N A Kotey in his said article at page 108 when he stated that: “Practical management is, however, done by the various sub-skins . . . Gambaga, Walewale and Langbinsi lands are managed by the respective Naba (chiefs).”) (The emphasis is mine.) It is significant that Gambaga, Walewale and Langbinsi are all part of the Mamprusi state.

It is clear from all the above that the skin and the title Na or Nab or Naba, are significant insignia of chiefly office in the Mamprusi state from which the office of Moshiehene of Kumasi is said, from the record, to derive. But the title or office “Moshiehene,” (a twi title), cannot fit into this diagnosed political structure of chieftaincy in the Mamprusi state. Apart from the title “Moshiehene” of Kumasi, the head of the Moshie community in Kumasi or Ashanti is sometimes referred to as “Moshie chief” as the record shows. If these titles were the equivalents of a customary chiefly title or office known to the Mamprusi system of chieftaincy, as extracted above, there would not be any problem. But as 1 have endeavoured to show, such titles, standing by themselves, without more, would not have a customary constitutional significance in the Mamprusi native state system.

[p.348] of [1997-1998] 2 GLR 315

Thus in Amegbe v Tepa (1958) 2 WALR 392 at 395 Ollennu J (as he then was) said:

“First, the allegation that the title ‘Odikro’ is a Twi term unknown to the Ewe constitution in itself shows that an assumption of that title by the plaintiff cannot raise any question of political or constitutional relationship between the plaintiff and any other chief. Had the title ‘Odikro’ been known to the Ewe constitution . . . there would be by custom and tradition a recognised political and constitutional relationship between the holder of the title and other chiefs in the state; and consequently the assumption of the title by a chief must raise the issue of those political and constitutional relationships. But none of those issues can arise where the title is unknown.”

(The emphasis is mine.) Assuming even that the title “Moshiehene” is known in the Mamprusi state system and a fortiori in the Moshie kingdom, it would be so known in the popular and not in any constitutional sense, since, for the reasons already advanced, without a skin, it would be an inchoate chiefly office and therefore no chiefly office.

In any event, since there are categories of chiefs, one wonders into what category of chiefs a Moshiehene or any other such community-hene falls. In Republic v Komenda Traditional Council, Ex parte Prah II [1981] GLR 759 at 764, Osei-Hwere J (as he then was) said:

“What section 49(e) of Act 370 postulates is that the categories of chiefs enumerated before are not exhaustive but that there may be other types of chiefs who are recognised by the regional house of chiefs. This is factual but not speculative. If the respondent, Kwesi Essiah, is such a chief who is recognised by the regional house of chiefs, he should have disclosed it in his affidavit. Nothing short of this can so satisfy the court that he is a chief under section 49(e) of Act 370 . . .”

In that case it was contended, in an application for prohibition, that the respondent, not being a chief, his removal as head of family would not entitle him to issue a writ before the judicial committee of the traditional council, as its jurisdiction is limited to causes or matters affecting chieftaincy. I would respectfully adopt [p.349] of [1997-1998] 2 GLR 315 this pronouncement of Osei-Hwere J (as he then was) except that, rather than requiring that such evidence be produced to show that any of the parties to this application is a chief (a cause or matter affecting chieftaincy over which this court has no original jurisdiction), I would require such evidence to establish that the office of “Moshiehene” of Kumasi or “Moshie chief” of Kumasi, is a chiefly one recognised by the regional house of chiefs. There is none.

There is no doubt that sometimes a customary title or position is used in a colloquial or grandiloquent sense or simply coined, and ought to be treated as such and no more. Thus, in Ameoda v. Pordier and Amoeda v Forzi (Consolidated) [1967] GLR 479 at 488, CA, Apaloo JA (as he then was) (Azu Crabbe JA (as he then was) and Amissah JA concurring) said:

“Mr. Pogucki recorded in his report that although the conception of stool land, strictu sensu, is unknown in the Adangbe area, that term is sometimes used as a colloquial expression. It seems to me that that was the sense in which the word’ningo stool lands’ was used in the destoolment charges. In my opinion, it would not be right to hold that an illiterate was liable to lose his ancestral property because a letter-writer whom he commissioned to write for him used a colloquial expression whose legal purport such illiterate neither under stands or appreciates. I do not think that the words ‘stool land’ used in the destoolment charges can properly be regarded as an admission against interest binding on the appellant’s family.”

In Olukare v Ikare (1950) 13 WACA 72 at 73, Blackall P delivering the judgment of the court, said: “Before proceeding further I should like to make an observation upon the expression ‘natural ruler.’ That is a popular, not a legal term; it is used in local parlance as a somewhat grandiloquent appellation for native chiefs, but it has no legal significance whatever. The only native ruler is a person who has been appointed by native law and custom, and who is vested with such powers of administration as the law provides. There is no other kind of native ruler, natural or otherwise . . .”

[p.350] of [1997-1998] 2 GLR 315

In Republic v High Court, Denu; Ex parte Avadali, (supra), the constitutional chiefly position of the head of the Anyigbe clan was certified by exhibit E, put in freshly at the Supreme Court in that case, as follows:

“The indigenous population of Agave is composed of various clans (Hlowo), each of which is a collection of families supposed to have a common ancestor . . . Each of the clans is headed by an appointed ‘Hlotator’ or ‘Tato’ for short. His status in the entire Agave traditional political set-up is ‘Tefia’ or ‘sub-chief’ ”

(The emphasis is mine.) This court had no difficulty, aforesaid, in upholding that office as a chiefly one and quashing the ruling of the High Court, Denu to the contrary.

By contrast, in Eku alias Condua III v Acquaah (supra), Azu Crabbe and Lassey JJA (as they then were) would accept a headman as a chief where, as Lassey JA (as he then was) put it at 459 aforesaid: “His office or status is recognised as part of the traditional structure of the state of which the village of which he is the head is an integral part.” (The emphasis is mine.) However, even though the headmen of Aboasi fishing community styled themselves as Chiefs Condua I to Condua III, they did not pass for chiefs because as Lassey JA (as he then was) put it at 461:

“The position of the headman of the fishing community of the village of Aboasi is in my view equivalent in rank to that of the headman of either the Ada fishing community in Accra or the Anlo fishing community at Amakom near Cape Coast in the Central Region. In either case the headman is only a sectional head of his community in the area, and therefore his election or deposition is purely an internal matter for the members of the community, although custom requires that after his election as headman he may be outdoored and introduced to the traditional authorities in the area.”

(The emphasis is mine.)

The case of Toku v Adukorang (1958) 3 WALR 535 vividly brings out the point I am seeking to stress here. The facts as stated in the headnote are as follows:

“The plaintiff, who held a customary office as Nkwakwahene (leader of the young men), had agreed with his members to give support to a particular candidate at a local council

[p.351] of [1997-1998] 2 GLR 315 election. Subsequently and against the wishes of the members, he had come out in support of a different candidate. Complaint had thereupon been made against him by some of his members (the defendants) and at a customary arbitration he had apologised and given pacification. Thereafter the defendants, who had stated at the arbitration proceedings that they had other complaints against the plaintiff, refused to recognise him as Nkwakwahene. He thereupon claimed to be reimbursed the pacification for which he had paid and also sought an award of damages.”

(The emphasis is mine.) Adumua-Bossman J (as he then was) held at 537 that:

“Even constitutionally elected Ahinfu (Chiefs) are not entitled as a matter of course to compensation or damages when their subjects refuse, rightly or wrongly, to continue recognising them; how much more then a person in the position of “leader of young men,” in respect of whom the trial Native Court themselves say: ‘Nkwakwahene, according to custom, has no legal status in Twifu State Council.’ The position is therefore that there has been no breach of any legal duty as such, owed to the plaintiff, the breach of which could give him the right to claim damages, and the learned Magistrate was therefore quite correct in his view that the plaintiff’s claim disclosed no cause for action.”

(The emphasis is mine.) Thus the use of chiefly titles in the latter two cases was in a colloquial or grandiloquent sense. Similarly, it is plain that the parties here are also saying that the Moshiehene of Kumasi, according to custom, has no legal status in Mamprusi and a fortiori, the Moshie traditional area. This is because, as the record shows, they were ad idem that the Moshiehene is not a chief because he has neither a skin nor a stool. That being so, their claim and counterclaim at the High Court Kumasi, were not a ploy to clothe that court with jurisdiction but as a result of the stark reality that the office of Moshiehene at customary law is not a chiefly one. That title is only colloquial or grandiloquent. After all there is no discernible reason why the parties should be so desperate about clothing the High Court, Kumasi with jurisdiction in the matter. Certainly, the defendant (the applicant herein), who claimed to have won the matter at a previous arbitration, would

[p.352] of [1997-1998] 2 GLR 315 have pleaded that it was a cause or matter affecting chieftaincy and that the court had no jurisdiction over the same, in a bid to preserve the said award in his favour. It is inconceivable that both parties would have devalued the status of Moshiehene from that of a chief, if really it is a chiefly office, to that of bare head of the Moshie community just to clothe the High Court with jurisdiction when the chieftaincy tribunals are available, with an appellate hierarchy.

It is clear from exhibit E in the record, which was submitted by the applicant’s faction of elders headed by Osman Oudrago (the fourth defendant witness), that the word skin was therein used in a colloquial sense. It appears, besieged with inverted commas, in the following sentence:

“The first late chief who was succeeded by the late Alhaji Abdul Rahaman hail from the same (Alhaji Abdul Rahaman’s) family and that the entire Moshie community are appealing to that family members to co-operate and join hands in transferring the ‘skin’ to another house and serve the new chief wholeheartedly as the late chief’s family members may in future be considered for enskinment.”

(The emphasis is mine.) It is easy to infer from all the papers before this court concerning this application, that exhibit E was written long before the institution of the action in the High Court, Kumasi and it reinforces the assertion that the office of Moshiehene is not a chiefly one. That assertion therefore has the imprint of the adage veritas liberat.

To sum up, it is clear from all that I have said supra, that in the Mamprusi political system the insignia of chiefly office include a skin, a chiefly title, Na, Nab or Naba and a rank or category. The office of Moshiehene of Kumasi lacks these basic insignia. The record clearly shows that the office of Moshiehene is patterned upon the Mamprusi system of chieftaincy and not any other traditional system. consequently, any claim that it is a chiefly one is determinable according to that system and not to recognition by the Asantehene. In any event, recognition of office per se does not necessarily clothe it with a chiefly status. As Lassey JA (as he then was) said of the Aboasi fishing community in Eku alias Condua III v Acquaah (supra) at 460:

[p.353] of [1997-1998] 2 GLR 315

“It can, however, be assumed that as members of this fishing community had lived for many generations in this village their headman is bound to be recognised as such by the stool of Jomo and the Paramount Chief of Shama. But the pertineni question is this: does the fact that the office of the headman of the fishing community of Aboasi has for a very long time been recognised as such by the traditional authorities of the Shama State make it part of the traditional structure of the Shama State? Or is their headman automatically accorded the status of a chief in the chiefdom of the State of Shama? For my part, I find it difficult to regard the headman of the fishing community of Aboasi village as a traditional chief in the State of Shama.”

(The emphasis is mine.) The chiefly structure of native states does involve certain offices which are not necessarily chiefly ones and though they relate with chiefs in the traditional hierarchy right up to the top, such relations may be constitutional relations but not relations between chiefs. Thus in his aforementioned article, Professor C E K Kumado states at p 195 as follows: “In a typical traditional area, authority was hierarchically structured. There is a head chief followed by divisional chiefs, village chiefs and elders or heads of the various lineages.” Then further at pages 195-196 he states:

“In nearly every case, and at whatever level, the chief was assisted by a Council sometimes made up of elders or of the heads of other lineages within the group. In the Akan communities, commoners had a leader who served as a filter for infusing the views of the masses in the traditional government.”

(The emphasis is mine,) Similarly, E N A Kotey, in his aforementioned article, states at page 106 thus: “Systems of the pre-colonial political organisation were of two main types: the centralised or state systems and the segmentary or non-state systems. Though these are not exact and exclusive categories and may rather represent the polar ends of a spectrum, their usage is well established and is therefore maintained. The state systems had developed, hierarchical and relatively centralised political structures. Generally these state societies had a king or paramount chief at the top and various

[p.354] of [1997-1998] 2 GLR 315 levels of chiefs and other political office holders under him. Gonja, Dagbon, Mamprugu Nanum, and Wa belong to this class.” (The emphasis is mine.)

In an ever changing world, the levels of officials that a chief may have to recognise and deal with in his traditional chiefdom may include stranger ones, such as the head of Moshie community in Kumasi; but as I said earlier, such recognition may not have any truck with chiefly office, nor is the situation different in respect of certain recognised indigenous but non-chiefly offices. The two types are amply demonstrated by the cases of Eku alias Condua III v Acquaah (supra) and Toku v Adukorang (supra). In the present case, therefore, the claim of the applicant at the High Court, Kumasi, for: “(1) A declaration that the defendant is the head of the Moshie community in Kumasi who has been duly selected and installed and recognised by Otumfuo the Asantehene”; does not convert the ascertained non-chiefly status of the head of the Moshie community in Kumasi into that of a chiefly one. Were the office of Moshiehene a chiefly one, then the claim to be recognised by the Asantehene to be Moshiehene, might have chieftaincy connotations.

I would, however, concede that if there is a dispute as to which of two or more chiefs has the customary right to recognise the status of a person in respect of a constitutional customary position in a chiefdom, without which recognition the status of that person would be affected, that might Involve an issue of constitutional relations between chiefs. But that is not the case here. In Anomabu Stool v Acquah (1957) 2 WALR 256 at 269, PC Lord Somervell delivering the judgment of the Privy Council, said: “In considering whether a question or matter relates to political or constitutional relations one applies the test laid down in Vande;rpuye v Botchway (1956) AC 501. What is the real issue. The real issue is quite plainly the ownership of land.”

In Amegbe v Tepa (1958) 2 WALR 392, Ollennu J (as he then was) held that the status of an odikro (where that title was known) is one of a constitutional nature. It was similarly held in Eku alias Condua III v Acquaah (supra), that an odikro is a chiefly constitu tional post but that the question of the headship of the Aboasi fishing co mmunity which was not a chiefly one or at any rate had

[p.355] of [1997-1998] 2 GLR 315 no place in the Shama State Council, was not a constitutional matter. As Azu Crabbe JA(as he then was) put it at 439:

“. . . the suit in this case . . . raises only a pure question of fact. In this case . . . the sole issue is whether the appellant, a person who has no constitutional status in the village, has in fact been removed or suspended. I cannot see how on the facts of this case any state council can turn this pure issue of fact into a matter of customary law and constitutional issue . . .”

Lassey JA(as he then was) concurring said at 462:

“The appellant here, in my view, was only asking the court for a declaration establishing a claim to a bare title, dignity, apart from the right or privilege to exact fishing tolls which was attached to appointment to the office of headman. To my mind, this purely is an ordinary personal suit which is cognisable . . . by the High Court . . .”

The position of the Moshie community head in Kumasi, on the facts of this case, stands in consimili statu with that of the Aboasi fishing community headman in the Eku alias Condua III v Acquaah case (supra) and is not a chiefly one. On the facts and principles, the position of Moshiehene of Kumasi has the outward trappings but the inner falsity, of chiefly office.

Before I am done, I would like to comment briefly on rule 6 1 (1) of the Supreme Court Rules, 1996 (Cl 16), which provides:

“61. (1) An application seeking to invoke the supervisory jurisdiction of the Court under article 132 of the Constitution shall be by motion on notice as specified in the Form 29 set out in Part IV of the Schedule to these Rules and shall be filed with a copy of the decision against which the application is sought and accompanied by an affidavit.”

(The emphasis is mine.) It appears that because certiorari is the most frequent application to this court, this rule has been framed in language primarily suited for that remedy. It is obvious that the scope of the supervisory jurisdiction of this court under article 132 of the Constitution, 1992 is very wide. In other applications to invoke the supervisory jurisdiction of this court, no decision may be involved, indeed, the object of an application may well be to prevent a decision being reached by the court or adjudicating authonrity concerned. In any case, I do not read this rule as dis-

[p.356] of [1997-1998] 2 GLR 315 entitling a party from filing with his application or averring all those things which at common law could assist in establishing his case. I therefore see no reason why this court in the present application has been starved of such documents as copies of the writ and the pleadings.

In the final analysis, for all the reasons I have advanced supra, I would dismiss this application.

Akuffo JSC. This is an application for an order of certiorari to quash the judgment of the High Court, Kunimasi, dated 31 July 1996, delivered by Piesare J in suit No CS 241/95, and for an order of prohibition restraining the said court from enforcing the said judgment. The grounds upon which the applicant seeks these reliefs are that the issue before the court in the said suit was a cause or matter affecting chieftaincy in the Moshie Community of Kumasi and therefore the High Court was not competent to entertain and determine that issue. The question for us to determine is, therefore, whether or not the matter before the learned High Court judge was, indeed, a cause or matter affecting chieftaincy.

According to the applicant’s affidavit in support of his application herein, in the suit before the High Court (intituled Chief Ailhaji Iibrahirnm Abdulrahman, Head of Moshie cCommunity, Kumasi v Ailhaji Amadu Abubakari), the reliefs claimed by the plaintiff therein (the interested party herein) were for:

“(i) A declaration that the plaintiff is the substantive Kumasi Moshie Community head.

(ii) An order of perpetual injunction to restrain the defen dant, whether by himself, his agents or servants, from re presenting himself as the Kumasi Moshie community head or purporting to act as such.

(iii) An order of perpetual injunction to restrain the defendant, whether by himself, his agents, or servants from inter fering in the plaintiff’ ‘s performance of his duties as the substantive Kumasi Moshie community head.”

For his part, the applicant herein had by his statement of defence therein, also counterclaimed for:

“(i) A declaration that the defendant is the head of the Moshie community in Kumasi, who has been duly selected and installed and recogrnnised by Otumfuo the Asantehene.

[p.357] of [1997-1998] 2 GLR 315

(ii) Perpetual injunction restraining the plaintiff from styling, posing and representing himself as the head of the Moshie community of Kumasi.”

The core of the applicant’s case is as set out in paragraphs (7) and (8) of his affidavit in support of his application, wherein the applicant deposed as follows:

“(7) That tbfor the purpose of deciding this issue, the High Court took evidence from several witnesses on Moshie tradition and in the end delivered judgment . . . in which it dismissed my defence and counterclaim and gave judgment forth a plaintiff on his substantive claim, hold ing that the nomination and installation of the Moshie hene of Kumasi was valid while I was not properly nominated and installed as such.

(8) That I am aggrieved by that judgment because, as I am advised and verily believe to be true, the issue between me and the plaintiff was a cause or matter affecting chieftaincy in the Moshie Community of Kumasi which the High Court had no jurisdiction to try and therefore its judgment is void and of no legal effect.”

The learned trial judge identified the issue before him to be one of: “Whose nomination and installation as the Moshiehene of Kumasi was proper or valid according to the Moshie tradition in Kumasi here.” (The emphasis is mine.) In resolving this issue, the learned judge reviewed both the oral and documentary evidence before him, regarding the procedure for the nomination and instal lation of the head of the Moshie community of Kumasi. A signifi cant part of the evidence accepted by the learned judge was the testimony of (the third plaintiff witness), in respect of which he said:

“Now Dr Abubakar (the third plaintiff witness) in his comprehensive evidence on the historical link between the Mamprusis and the Moshies, showed that the Mamprusihene of Gambaga (the Nayiri) founded the Moshie kingdom for his grandson Ouodrago, who thus became the first Moshie king. The result is that it has become the Moshie custom and tradition that the Mamprusihene, both at home and in Kumasi, has always been treated as the grandfather of the Moshie

[p.358] of [1997-1998] 2 GLR 315 people, and that as such, he is always consulted whenever it becomes necessary to fill the vacant place of a Moshiehene.”

Also forming part of the evidence were two letters from repre sentatives of the two factions, both of which were addressed to the head of the Mamprusi community in Kumasi. The first letter was exhibit E, from the elders of the Moshie community of Kumasi, nominating the applicant herein to the vacant position; the second was exhibit 12B, from the council of elders of the Moshie commu nity, nominating the interested party herein to the same position. It is clear from the most cursory reading of these letters that each of the disputing factions sought, by their letter, the support and parthi cipation of the Mamprusihene of Kumasi in the installation of their particular candidate.

After reviewing the evidence, the learned judge concluded that:

“. . . all these two requests as embodied in these two letters exhibits E and l2B, are clearly and patently, an admission by either party that there can be no Moshiehene of Kumasi with out the consent, approval and participation of the Mampru sihene of Kumasi in the installation . . . And I accept the plaintiff’s case in the circumstances, that the installation of the Moshiehene of Kumasi is the prerogative of the Mamprusi hene of Kumasi, and therefore without the Mamprusihene of Kumasi, any installation of a Moshiehene of Kumasi is null and void. Accordingly, I accept the plaintiff’s installation by the Mamprusihene as the substantive Moshiehene of Kumasi as the valid installation, as against the defendant’s installation by the Moshie imam.”

Regarding the proceedings before the arbitration panel which had been set up by the Asantehene to resolve the dispute, the learned judge concluded, inter alia, that upon a close legal scrutiny, it could not have been a judicial hearing since neither of the parties directly concerned was even heard at all. It was therefore, according to the judge, not binding on the parties to the matter before him. Concerning the defendant’s claim that he was the one recognised as the Moshiehene of Kumasi by the Asantehene, the court concluded that there was nothing that amounted to a customary recognition, and all that took place was, at best, an introduction of the defendant to the Asantehene. On the strength of the evidence accepted by the judge, therefore, he held that:

[p.359] of [1997-1998] 2 GLR 315

“(1) The nomination of a candidate for the post of the Moshiehene of Kumasi is done by the council of elders of the Moshie community in Kumasi. If the Moshies now want to shift this responsibility to the heads of the sub-communities, they should agree to a constitution to that effect.

(2) That the installation is done by the Mamprusihene of Kumasi, not by the Moshie imam.

(3) That the plaintiff was nominated by the council of elders, and installed by the Mamprusihene of Kumasi, so the plaintiff is the valid substantive Moshiehene of Kumasi.

(4) That the defendant was not properly nominated and installed as the Moshiehene of Kumasi, so he is not the Moshiehene of Kumasi.”

In section 117 (1) of the Courts Act, 1993 (Act 459), the expression “cause or matter affecting chieftaincy” is defined (inter alia) to mean:

“any cause, matter, question or dispute relating to any of the following:

“(a) nomination, election, selection, installation or deposition of a person as a chief or the claim of any person to be nominated, elected, selected or installed as a chief;

(b) the destoolment or abdication of any Chief;

(c) the right of any person to take part in the nomina tion, election, selection, appointment or installation of any person as a Chief or in the deposition of any Chief . . .”

The other definitions, contained in the subsection, do not concern us here.) “Chief” is defined in article 277 of the Constitution, 1992 as:

“. . . a person, who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queen-mother in accordance with the relevant customary law and usage.”

In his statement of case, counsel for the applicant argued that the dispute before the High Court:

[p.360] of [1997-1998] 2 GLR 315

“being, as it was, one involving which of two person . … had been validly nominated and installed Moshiehene of Kumasi, in succession to the one who had died in 1994, one would readily have to accept this case as being a cause or matter affecting chieftaincy.”

Counsel further contended that since, in resolving the matter before him, the learned judge had applied the tradition for the installation of a Moshiehene at home, which is said to be appli cable wherever the head of a Moshie community is to be installed, “there could be no doubt that the court was dealing with a cause or matter affecting chieftaincy, albeit not a Ghanaian chieftaincy bult a Moshie chieftaincy.” According to counsel:

“The ban on the power of the High Court to entertain causes or matters affecting chieftaincy does not appear in terms to be limited to causes or matters affecting Ghanaian chieftaincy alone but appears to apply to all chieftaincy disputes.”

Counsel, therefore, submitted that:

“. . . the dispute which the High Court purported to deal with was a cause or matter affecting chieftaincy, albeit it is within the Moshie community in Kumasi for ultimately the court found itself adjudicating upon a Moshie chieftaincy dispute as it obtains in the home country of the Moshie king. If the High Court has no jurisdiction to entertain a cause or matter affecting Ghanaian chieftaincy, can it be said that it has jurisdiction to entertain suit involving a dispute relating to chieftaincy in a foreign country?”

Counsel for the interested party, in his statement of case, con tended that the case before the High Court was simply one of the headship of an immigrant community, and not a cause or matteir affecting chieftaincy. He therefore submitted that: “. . . the quest ion whether or not a dispute is a cause or matter affecting chief taincy can be answered only in reference to the pleadings and the evidence in the case.” Consequently, he urged that since the appli cant, in paragraph (7) of his statement of defence and counte rclaim, had averred that the “headship of the Moshie community mis neither a stool or skin” it lies ill in the mouth ofl the applicant now to contend that the matter before the trial court was one affecting chieftaincy. He further argued that:

[p.361] of [1997-1998] 2 GLR 315

“(1) Throughout the trial it was common ground between the parties that the head of the Moshie community in Kumasi is not a chief since he occupies neither a stool nor skin.

(2) At all material times during the trial, neither party claimed that he was a chief within the customary law and statutory meaning of the word.

(3) Since the laws of Ghana have no extraterritorial appli cation, it is far-fetched to contend that the definitions and provisions in the Constitution, 1992 and the Chief taincy Act, 1971 (Act 370) are to be construed to encompass chiefs throughout the world.”

During the course of the hearing of the application, counsel for the interested party also referred to the case of Eku alias Condua III v Acquaah [1968] GLR 412, CA as an authority in support of the proposition that the headship of a community is not a cause or matter affecting chieftaincy. I quite agree with counsel for the applicant that that case did not establish any such authority and is, indeed, irrelevant to the resolution of the matter here. In my view, if the evidence in a dispute shows that the headman of a particular community is, in fact, occupying a chiefly position, then the mere fact that his title is “headman,” or some such expression, would not derogate in any material manner from the true nature of the position.

In my view, the more relevant point of reference in this matter is the case of Republic v High Court, Denu; Ex parte Avadali IV [1993-19941] 1 GLR 561, SC. There, this court held, inter alia, that, in ascertaining whether or not a matter is one affecting chief taincy, the court must look at the substance of the claim, not the form in which it is presented. As my esteemed sister, Bamford ddo JSC expressed it in her opinion therein at 585:

“It seems to me that the respondents’ claim is basically a cause or matter affecting chieftaincy over which the High Court had no jurisdiction, but framed under colour of a land dispute which is within that court’s jurisdiction.”

His learned lordship, Abban JSC (as he then was), in analysing the nature of the matter before the High Court, said at 573:

“It was obvious that in relief (a) the first respondent wanted the High Court to declare him hilotator of the whole of

[p.362] of [1997-1998] 2 GLR 315 the Anyigbe clan. In relief (b) the respondents wanted the High Court to make an order to restrain the applicant from using the title hilotator and from managing the Anyigbe clan lands in his false capacity as hilotator. In relief (c) the respon dents were contending that they had suffered some damages because of the applicant’s conduct of falsely masquerading as hilotator and so the court should award damages against him.”

Further on in this learned opinion, his lordship continued by saying at 574;

“The whole issue as I see it, depends upon whether the office of hilotator is equivalent to that of a chief and if it is, then the High Court has no jurisdiction to make the declara tions which the respondents have spelt out in their writ of summons.”

On the basis of the proven facts of the case, their lordships, unanimously, concluded that the office of the hilotator of thce Anyigbe clan is equivalent to that of a chief and they, therefore, held that the High Court had no jurisdiction to make the declara tions claimed in the matter.

Another case in point is that of the Republic v High Court, Koforidua, Ex parte Bediako II [1998-99] SCGLR 91. In that case, an application that been bought before the High Court for an order of certiorari to quash the purported destoolment of one Baf four Kwabena Adjabeng as the odikro of Soabe. The ground for that application was that the Oseawuohene of Akyem Abuakwa who had purported to destool the odikro, had no jurisdiction to do so, since he was not the judicial committee of the Akyem Abua kwa Traditional Council. The Oseawuohene, in a supplementary affidavit, had contended that the odikro was merely a headman, not a chief, since the process for his enstoolment was incomplete. In particular, the Oseawuohene averred (in paragraph (9) of his said affidavit) that the name of the odikro did not appear in either the register of chiefs kept by the Akyem Abuakwa Traditional Council or in the National Register of Chiefs. The High Court judge, therefore, subpoenaed the registrar of the Akyem Abuakwa Traditional Council to produce his records on the status of the odikro. These showed that the odikro was on record as such. Con sequently, the learned judge granted the application and quashed the purported destoolment, The Oseawuohene then applied to this

[p.363] of [1997-1998] 2 GLR 315 court for an order of certiorari to quash the decision of the High court, on the grounds that the High Court judge had usurped the jurisdiction of the Akyem Abuakwa Traditional Council when he heard and determined the question raised by the Oseawuohene as to whether or not Baffour Adjabeng had the status of a chief. By unanimous decision, this court dismissed the application on the ground that the only matter determined by the judge was what was before him, iei.e. whether or not the Oseawuohene had the jurisdiction to hear and decide destoolment charges against the odikro. Regarding the true effect of the evidence of the registfrar, my learned brother, Aikins JSC, in his ruling, noted at 96 that: “. . . it was because of the averment in paragraph 9 . . . that the High Court Judge subpoenaed the Registrar of the Traditional Council to produce any document indicating whether or not the respondent herein’s name appears in the register as a chief.”

It seems to me that in a matter of this nature, it is essential for us to remain focused on: (a) the nature of the issue before the High Court; (b) whether the issue was within the court’s jurisdiction; and (c) whether, in resolving the issue, the court effectively made a determination affecting chieftaincy, and thereby overstepped the bounds of his jurisdiction. I believe this is what this court had done in the above-mentioned cases.

I have closely examined the record before us, in particular the judgment sought to be quashed, and I cannot find anything therein that could possibly constitute the matter before the High Court, one affecting chieftaincy. Furthermore, as far as the record reveals, there was nothing before the court involving a chieftaincy dispute “in the home country of the Moshie king.” In order for the applicant to succeed in this application, we will have to conclude that the position occupied by the head of the Moshie community of Kumasi is equivalent to that of a chief, within the meaning of the Constitution, 1992, art 277. We will also have to conclude that the declaratory claim made before the High Court amounted to a claim for a declaration that the claimant had been nominated, elected, appointed or installed as a chief within the meaning of the Constitution, 1992. I see nothing on the record that would justify any such conclusions.

On the face of the record before us, the claim before the High Court was not one involving chieftaincy, let alone one involving

[p.364] of [1997-1998] 2 GLR 315 chieftaincy in a foreign country. Neither party was claiming to be a chief, nor is there anything on the record to persuade me that the position being contested is, in reality, that of a chief in the constitutional sense of the word. It is worthy of note that in exhibit E the proponents of the applicant, in using the word “skin” took care to place it within quotations. To me, this is an indication that the word was being applied in a borrowed sense. As I have already mentioned, according to the statement of case on behalf of the interested party, the applicant had himself, by his statement of defence, acknowledged that the headship of the Moshie communi- ty is not a stool or a skin. There is nothing on the record indicating any fact to the contrary. I, therefore, fail to see how the matter before the High Court may now be categorised as one involving or affecting chieftaincy.

It is patently clear to me that the dispute before the trial court related to the Moshie community of Kumasi and only concerned the question of the headship of the same. It had nothing to do with any chieftaincy dispute in any foreign land, either. Furthermore, it is apparent on the face of the record that the references to the customary and historical relationship between the Moshie and Mamprusi kingdoms were for the purposes of explaining the rati- nalerationale behind the plaintiff’ ‘s contention that the Mamprushihene of Kumasi had an essential role to play in the installation of the Moshiehene of Kumasi. That purpose was, essentially, the same as that served by exhibits E and 12B. Certainly, nothing said by the judge could possibly have any effect, however remote, on chief- taincy in the Moshie kingdom, nor did the judge purport to adju- dicate on any such thing.

My understanding of the evidence accepted by the learned judge, particularly that of Dr Ababakar, regarding the procedure for the installation of a Kurnmasi Moshie community head, is very simple. The evidence was that, wherever there is a migrant Moshie community, it is their practice to emulate the traditional customs and practices prevailing at home in the installation of the Moshie King, when selecting and appointing their local community head. Indeed there is nothing on the record, or in the judgement of the tnrial court, that created or sought to create a formal, legal or con- stitutional link between the status of the Kumasi Mamprusihene and the Kumasi Moshiehene, on one hand, and the Nayiri and Moshie king, on the other hand, Nor can it be said that any attempt was made by either party to do so. There is nothing in the record

[p.365] of [1997-1998] 2 GLR 315 that would constitute the Mamprusihene of Kumasi a traditional representative or surrogate of the Nayiri. Additionally, there is nothing on the record that constitutes, or purports to constitute the Moshie community of Kumasi a traditional or customary entity of Ashanti or an extraterritorial traditional area or division of the Moshie kingdom. Therefore, the role played by the Mamprusihene of Kumasi in the installation of the Moshiehene of Kumasi cannot be seen as a customary act performed on behalf of the Nayiri.

Consequently, it is my respectful view that all the learned tnrial judge did was to: (a) ascertain what was the procedure observed by the Moshies of Kumasi in the selection, appointment and irnstal4-lationinstallation of their community head; and (b) determine which of the two contenders had been processed in accordance with the ascertained procedure. In the final result, therefore, all that the judge did was grant the plaintiff before him the reliefs he had claimed. These reliefs, I must reiterate, concerned only the headship of the Moshie community of Kumasi, a position which is not equivalent to that of a chief, in the statutory meaning of the word.

The institution of chieftaincy, as guaranteed by our National Constitution, 1992 and governed by Act 370, encompasses chief taincy that is grounded in Ghanaian customary law and usage. It is an institution that is sacrosanct and the ultimate reflection of each individual Ghanaian’s roots. The mere fact that the leader of a community of strangers residing in a Ghanaian locality is loosely referred to as Moshiehene, or Mamprusihene, or something or the other mantse or togbe, cannot transmute the position into chief tarincy of the nature and magnitude contemplated by the Consti tution, 1992 and Act 370. Nor can the mere use of the words “nomination”, in connection with this matter, necessarily give risce to chietaincychieftaincy status or issues.

Analytically, what is involved here is a community of migranit Moshies, resident in Kumasi and other parts of Ashanti, who have organised themselves into a cohesive unit. This unit has devised practices for the selection of a leader or spokesman. This leader oir spokesman is the one who represents the community in its dea ringsdealings with their host, the Asantehene. It is for this reason that the leader or spokesman, after his appointment, is formally introduced to the Asantehene, who is their landlord, so to speak. Merely be cause the members of such a community have chosen to emulate the customary practices of their homeland, in the selection and

[p.366] of [1997-1998] 2 GLR 315 installation of their leader or spokesman, cannot alter the legal and constitutional reality. Therefore, reception of evidence concerning the emulated practices and procedure cannot turn the matter into one affecting chieftaincy. As the learned trial judge, correctly in my view, noted:

“. . . these heads of stranger ethnic communities are not chiefs. They cannot therefore be accorded formal customary recognition as chiefs; as to do so, will tend to bring down the dignity of the sacred institution of chieftaincy to nought; for a time will come when it will become difficult to differentiate between a chief properly so-called, and a chaff.”

I wish to observe here that for decades now, large numbers of people from within and outside the country have, for economic and other reasons, migrated to various towns and villages through out Ghana. It has become quite a common practice for such immi grants to form themselves into cohesive groups, for the protection and facilitation of their common interest. The formality which such groupings are structured appears to be largely dependent upon whether they tend to reside in one locality, or live in scat tered areas of the place of settlement. These groupings may be called communities, or they may be also called unions, clubs societies, etc. It is also common for such groups to appoint, with varying degrees of formality and ceremony, one of themselves as their leader or spokesman, which formality may be an emulation of homeland rituals, local customary practices or some specially devised procedure’s which may or may not have anything to do with any customary law and usage. Sometimes, such a leader or spokesman is called the “chief’” of the group; other times, he may be called the chairman. In this case, he is, variously called the “head of the Moshie community of Kumasi”; the “Kumasi Moshie community head” and the “Moshiehene”. Invariably, where a titu lar suffix is applied, it is borrowed from the usages of the place of settlement. It is normal for these groups to introduce, formally, their chosen leader or spokesman to the customary chief of the locality (the host). Thus, in urban areas throughout the country, we have many ‘mantses’, ‘henes’, and what have you, heading vanri ous stranger settlements and groups. Indeed, this leader or spokes man may, in some instance, even receive some form of acknow ledgement from their “home chief”. It is my view that whatever title is given to such leader or spokesman, he is not a chief with

[p.367] of [1997-1998] 2 GLR 315 the constitutional meaning of the word, unless the contrary is proven by cogent evidence.

There is one final matter I wish to touch upon briefly. In the closing remarks of his statement of case, counsel for the applicant argued that:

“. . . the application for an order of certiorari should succeed so as to avoid the situation where a person would want to function as Moshiehene of Kumasi when he is not recognised by the Asantehene as the evidence portrays the applicant’s opponent. A Moshiehene of Kumasi being an alien it is incon ceivable how he could function as Moshiehene in Kumasi if the Asantehene, his host, does not accept him.”

However, as is evident from the record, what was involved was not a customary recognition in the true sense. As the learned judge noted, there was no swearing of an oath before the Asantehene, “and all that happened in the case of the defendant was that he was introduced to Nana Asantehene, and that Nana Asantehene gave him advice. That was all.” That being so, this argument by counsel is totally immaterial. In any event, in an application for an order of certiorari, what matters is not the consequences of the judgment sought to be quashed, but rather, whether or not the court had the requisite jurisdiction in the matter, or whether or not there is an error of some legal or procedural sort apparent on the face of the record.

In my view, the matter before the learned trial judge was not a cause, matter, question or dispute relating to the nomination, election, selection or installation of any person as a chief. It also did not relate to the claim or any person to be nominated, elected, selected or installed as a chief. At all material times, it was one involving which of two contending parties had been properly appointed as the head of the Moshie community of Kumasi, a non- chiefly position. Consequently, it is my considered opinion thait the learned High Court judge had jurisdiction to determine the matter before him and did not overstep the bounds of that juris diction in the course of adjudicating the matter before him. I will, therefore, decline this application.

I have not dealt with the issue raised in counsel’s submission regarding the extraterritorial effect of the prohibition of the High Court from adjudicating upon matters affecting chieftaincy. This is for the simple reason that I1 do not believe that such an issue [p.368] of [1997-1998] 2 GLR 315 properly arises in this case, since I hold the view that there is no chieftaincy cause or matter arising in the first place and I prefer not to deal with an abstract exercise.

Application for certiorari granted.

SA